Archive for the ‘Artist Management’ Category

Opening Pandora’s Box

Thursday, September 4th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

Loved your recent Musical American newsletter article on ethics.  As a manager, I was very interested when you wrote: “Indeed, the time is long overdue to start considering changes to the long standing paradigms and business models between managers and artists that, for many reasons and for all parties, are no longer viable.”  Any chance I could get you to expand on that comment a bit? 

Must I? It’s only going to get me in trouble! Oh, well, here goes….

It’s hardly a secret that everyone throughout the arts industry is working harder and harder and earning less and less—and searching for both solutions and as well as excuses. Managers and agents are increasingly becoming frustrated with artists who they perceive as making unreasonable expectations and demands in exchange for paltry commissions. Artists are increasingly becoming frustrated with managers and agents who they perceive as earning large commissions but are unable or unwilling to provide the additional skills and services that they feel are necessary in today’s arts and entertainment marketplace.

While some managers are exploring different options (ie: fixed retainers, hourly rates, reduced commissions for more successful artists, etc.) others are wedded to the strict commission model. As I sit here typing this on my computer keyboard surrounded by my collection of quills and antique ink wells, I am the first to admit that I am a staunch traditionalist, resistant to change, and have even been described as “a walking ritual.” However, change is inevitable and merely continuing to claim that what worked in the past will work in the future, ignores the present realities. Assuming that there is some sort of “industry standard” that has and will survive the test of time is both unrealistic and short sighted.

Under the traditional agent or management relationship, managers and agents literally advance their services on the expectation that they will be compensated with an engagement commission at some point in the future and that, if the artist sticks around long enough and is successful, the agent or manager will recoup the initial investment of their time and efforts. While it’s intended to be a mutually beneficial partnership, is this still the case? Are the risks still equitable? While most certainly there are issues to consider far beyond mere economic and business challenges, being an impresario doesn’t always pay the bills. Part of what makes the performing arts industry so unique is the personal passion most agents and managers share for the work of the artists they represent. Nonetheless, even where the goal is to introduce an artistically important artist to new audiences and perpetuate critical art forms, selling tickets, booking engagements, and discovering new programming opportunities are all commercial enterprises. If the end result is that managers and agents simply cannot afford to stay in business, then everyone loses.

One often overlooked factor is that agents and managers are not used to thinking of their time as a valuable commodity. However, like attorneys, doctors, and others who provide personal services, managers and agents are primarily “selling” their time, expertise, and experience and the traditional commission model doesn’t often adequately compensate for the value of the time actually spent. Similarly, because artists think in terms of results, they often don’t have a realistic understanding of how much time and effort it takes to provide them with the services and results they require and often conclude they can find better deals elsewhere or on their own. In other words, a manager’s own success can often undermine the perception of how hard they are actually working.

It’s one thing for an agent or manager to advance their time, but I’m also increasingly seeing agents and managers advancing their own money to cover artist expenses with the expectation of being reimbursed by the engagement or tour fees. When did an agent or manager’s business plan including being a bank? I’ve even seen many managers and agents advance costs for airline tickets or tour expenses, including visas and taxes, out of their own pockets only to have the tour cancelled or an artist leave the roster. At what point is a tour or artist not worth saving?

All of this leads to some important questions: is a demanding artist actually “worth” the time and effort that they require? How do you deal with a demanding client base without killing yourself?  Is the commission model still viable? What services do artists really want, need, or expect? (Remember, at least from a legal perspective, the “client” of an agent or manager is always the artist, never the venue.)  Is there a more efficient or cost effective way of providing those services? Are managers and agents spending too much time learning new skills at the expense of focusing their time on those areas where they already have expertise? While in many instances, the traditional an arrangement is the only way a new or young artist can afford management or an agent, does this arrangement continue to make sense with more established and successful artists? Does it ever make sense for an agency or management company to become overely dependent upon commissions from top artists to underwrite the less successful artists on the roster? Are there other viable options to earning revenue than simply charging higher commissions? Hourly rates? Retainers? Fixed fees? Merging smaller agencies and companies into larger and larger behemoths? Are there different arrangements that might better serve artists as well as agents and managers?

While I obviously have my own thoughts and opinions on these topics, they would hardly be dispositive or universally applicable. There is never going to be a single solution that works for everyone and, ultimately, each agency or management is going to need to develop different solutions that work for them, their business plans and goals, and their artists. Still, I’d love to see more serious consideration and exploration of these topics on multiple levels. Frustratingly, whenever I am a party to workshops and discussions about “new business models”, it almost inevitably winds up being a discussion of how to “sell” artists to presenters and, rarely, if ever, an honest assessment of the field of management and artist representation itself. In other words, the focus of exploration tends to be outwards—how to sell better, package better, market better, and, in short, reach venues and presenters in different ways. While those issues are unquestionable important, there remains a perception that it’s the marketplace that needs to fixed. If you really want to examine new paradigms in a changing environment, agents and managers, as well as artists and presenters, will also need to look inwards and examine themselves as well.

Have a great season everyone!

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

 

 

Welcome To The New Visa Reality!

Thursday, July 24th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

We filed visa petitions for O-1 and an O-2 visas. USCIS is asking for a contract between each of the O-2s and either the petitioner or the employers. This has never been an issue before and we’ve been doing this for 20 years. They are also asking for a union consult letter for one of the O-2s whose title is “Movement Coach.” We got a consult from IATSE for the others, but IATSE doesn’t cover this. USCIS is suggesting that we get a consult from AGMA. Do we have to do that? Can we use a letter from a peer organization like TCG or APAP instead?

Thanks for giving me an excuse to rant about USCIS and the new challenges of obtaining visas for artists who wish to perform and tour in the U.S. I haven’t done that for almost a month now.

Both the Vermont and California Service Centers continue to shoot back frustrating Requests for Evidence (RFEs) and to scrutinize petitions like never before. They appear to be paying special attention to O-2, P-1S, and P-3S petitions for support staff. It has now become de rigueur for USCIS to require that employment terms for each member of the support staff be specified, including who is paying them and how much they are being paid. They are also asking for resumes for each person and a specific statement of why each person is necessary and critical to the performance or concert.

You can also expect new troubles with P-3 petitions for culturally unique artists and groups. While P-3 petitions have always had their own complexities, both service centers are now reiterating that an artist or group cannot be culturally unique and also perform anything that is “contemporary” or “modern.” One RFE I saw stated that: “The contents and themes of a particular form of art may also contain elements and influences of a given culture, and yet still not meet the definition of “culturally unique.” Also, simply because a form of art may be unique, it does not necessarily follow that it meets die regulatory definition of “culturally unique.” Another USCIS examiner recently wrote:

It is not enough for the author of a testimonial letter to simply state that the beneficiaries have cultural, artistic, and/or culturally unique skills. The testimonials should be detailed and specific in describing what the beneficiaries’ skills are; how the beneficiaries obtained those skills; how and why those skills are associated with a “culturally unique” art form; and what the defining aspects of the beneficiaries’ particular art form are that make it “culturally unique” as opposed to other forms of the creative activity or endeavor. Furthermore, it is not sufficient to simply state that an artist represents his or her culture.

Speaking of testimonial letters, I am continuing to see USCIS request “independent evidence” establishing that each expert is, in fact, a “recognized expert.” Whether or not this means that the experts must now have experts, simply attaching the expert’s resume is no longer sufficient. USCIS is continuing to ask for articles and websites verifying each expert’s credentials.

In addition to targeting P-3 petitions and petitions for support staff in all categories, USCIS also appears to be focusing the all-seeing eye of Sauron on young artists, particular recent graduates who may still be in F-1 status. Any appearance of the words “young” or “rising” or “up and coming” will bring a certain RFE. You also need to focus on the “professional” work of the artist and put as much distance as you can between the artist and any school or training experience.

As for union consultations, letters from peer groups and service organizations have never been an alternative where a union covers the specific job title. However, while USCIS may have let this slip in the past, this is no longer the case. If they even smell the applicability of a union, then you must provide evidence of a union consultation (which could include a union objection. Remember, the unions do NOT have to approve any petition. They only have the right to be “consulted.”) In your case, USCIS is correct: AGMA is the appropriate union for a “Movement Coach.”

USCIS is also being remarkably inconsistent in processing times, as well. Just this week, I received an approval notice from the California Service Center three days after the petition was filed—and without premium processing! I’m not complaining, but the same service center took over three months to adjudicate a petition I filed in April. More recently, the Vermont Service Center approved a P-1 petition in two weeks, but lost the accompanying P-1S petition I had filed at the same time. This only serves to make an already unpredictable process even more unpredictable. The only thing I can say with certainty is that the “official” reported processing times that you will find posted on the USCIS webpage are about as reliable as a cheesecloth condom!

The best you can do at this point is exhaustively document your petitions, allow lots of extra time, plan for the worst, anticipate USCIS stupidity, and, with any luck and few talismans, be pleasantly surprised. In short, whatever you did in the past, all that changed after January 2014. Welcome to the new visa reality!

__________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

Is Ethics Only In The Eye Of The Beholder?

Thursday, July 17th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

An artist we have been representing for over 10 years just told us that he is leaving our roster and will be joining the roster of another management company. We didn’t have a written agreement, but we’ve never needed one as we’ve always believed that if you act ethically and professionally, others will do the same. While we think the artist is making a mistake, we are not interested in arguing his right to leave and want to make the transition amiable. The artist has agreed to honor our commissions for the dates we have booked. However, the question has come up as to whether we are obligated to give the artist all of the leads and contacts we have been pursuing on his behalf that have not been booked yet. That doesn’t seem fair. We have been working on some presenters for years, have invested a lot of time, and consider that to be our proprietary information. If we turn all of that over to his new manager, that’s just going to be a gift to the new manager who will follow up on all of our work and take the commissions. Are there any laws about this? If I am legally required to turn over all of my work, is there a way I can still refuse unless the artist agrees to pay me? 

I’m glad to hear that you are “not interested in arguing his right to leave” as, without a written contract, there is nothing to argue. The artist has the right to leave whenever he wants. As for the issue of the artist’s right to the leads and contacts you have been pursuing on his behalf, even if you had a written agreement, it wouldn’t help you get the outcome you want.

Yes, there are laws that govern this scenario, but be forewarned: you aren’t going to like them.

Legally, anyone who represents someone else (attorneys, realtors, accountants, employees, artist agents and artist managers, etc.) are all considered “agents”. The people they work for are called “principals.” The Law of Agency governs the relationship between agents and principals. While the Law of Agency imposes duties on both agents and principals, for purposes of this discussion, there are four key concepts:

(1) An agent works for the principal and, while the agent can advise the principal, the agent must follow the instructions and directives of the principal.

(2) An agent can never put his or her own interests above that of the principal.

(3) All of the “results and proceeds” of the agent’s work on behalf of the principal belongs to the principal.

(4) Any contractual provision, written or oral, that contravenes rules (1) – (3) is null and void.

In short, when a manager represents an artist, the manager has no proprietary information. In other words, those aren’t your leads and contacts, they are the artist’s. While your leads and contacts may start out as your own, once you contact someone on behalf of an artist, the artist is legally entitled to know anyone you have spoken to on his or her behalf, including the details of such conversation. Moreover, unless there is an agreement to the contrary, the artist is also free to contact anyone directly on his own behalf. While I realize, at the outset, this might seem unfair, bear in mind that the Laws of Agency were designed to protect the agent in that, by complying with such laws, an agent is not liable for the actions of the principal. That’s important if an artist decides to cancel a date or breach a contract you negotiated. It is also important to know that, when entering into a relationship with an artist, the Laws of Agency do not prohibit you from negotiating whatever fees and payment terms you believe will compensation you for your time. You are not limited to seeking commissions on booked dates. Assuming the artist agrees, you can ask for commissions on potential dates as well as confirmed dates, repeat clauses, hourly fees, retainer payments, or any formula or terms that the parties agree to. (Indeed, the time is long overdue to start considering changes to the long standing paradigms and business models between managers and artists that, for many reasons and for all parties, are no longer viable.) However, if all you ask for is commissions based on booked dates, and there is no agreement, written or oral that entitled you to anything else, then there is no right to commissions based on dates “in the works” regardless of how much time and effort you have spent.

Despite a legal requirement to turn all leads and prospective dates over to the artist, you ask whether or not you can nonetheless “refuse unless the artist agrees to pay me.” Sure. You can always just refuse and force the artist either to spend the time and money to sue you, pay you for disclosing the leads and contracts, or sulk away angrily letting you keep what you believe—albeit, incorrectly—is rightfully yours. People refuse to honor legal obligations all the time. In fact, you may yourself be familiar with presenters who cancel dates and refuse to honor full-executed and legally binding engagement contracts claiming such things as “poor ticket sales” or “lack of funding.” Over the years, this blog has been replete with such tales and you can imagine the cries of “unethical” and “unprofessional” that arise from the managers who booked those dates.

You seem to be suggesting that, while you believe in acting ethically and professionally, you are also more than willing to consider acting unethically and unprofessionally if it is to your advantage to do so. I’m all for self-delusion, in fact, its one of my own cherished survival skills, but don’t confuse that with ethics.

_________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

When Is A “Work For Hire” Not A “Work For Hire”?

Thursday, July 10th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

An orchestra commissioned one of our artists to make an arrangement of a work for them to perform. We agreed that it would be a “work for hire.” Now, the orchestra wants to record their performance of the arrangement and has come to us asking for the artist’s permission. It was my understanding that a “work for hire” meant that the orchestra owned it. Is that not the case? If they own it, why are they asking us for permission? If they record it, can the composer still ask for royalties even though the commission agreement stated it was a “work for hire?” What am I missing?  

You’re not missing anything. You are absolutely correct that when a commission agreement expressly states that the commissioned work will be a “work for hire”, then the commissioner owns it. In which case, the composer isn’t entitled to anything beyond the commission fee.

Apparently, however, the orchestra doesn’t understand what a “work for hire” means. The orchestra was either using a commission agreement template they didn’t understand or believed that the term “work for hire” meant they were hiring someone to do work. Regardless, playing with templates and “legalese” is like self-medicating—someone always winds up in the ER.

If the orchestra has come to you of its own volition asking for the artist’s permission, then I would offer to grant permission in exchange for a mechanical license or other appropriate royalty. If they agree, then you have just obtained royalties for your artist that he or she would not otherwise be entitled to. Just because the orchestra legally owns the arrangement doesn’t mean that it can’t make a subsequent and legally binding agreement to pay royalties to your artist even though they are currently under no obligation to do so. Would you be taking advantage of the orchestra’s misunderstanding if the rights it already has? Perhaps, but I would submit that keeping any royalty to the statutory minimum and allowing the artist to obtain what should have been negotiated in the first place mitigates the karmic debt. Besides, rationalization and self-delusion are among the vital cornerstones of the arts industry.

________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

But I Don’t Want To Be A Producer!

Thursday, June 19th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have booked one of our artists to perform at a venue. As we are the agent, our booking agreements are always between the venue and the artist, and we sign on the artist’s behalf. However, the presenter is insisting that, if we want to sign the contract and receive the engagement fee, as we do, then the contract must be between them and us. Is this correct?

If you are “producing” the artist—that is, you are being paid a fee by a presenter or venue to hire the artist and produce the performance—then, yes, the presenter is correct. However, if, as you say, you are the artist’s agent, then you are absolutely correct and the presenter is…well, confused.

Producers are paid a fee to provide the services of an artist. Typically, the producer will either accept a fee, use a portion of that fee to pay the artist, and pocket the difference; or invest his or her own money to hire the artist, and then keep the box office or other profits from the performance. Either way, a producer accepts a substantial amount of risk in exchange for a greater return. However, merely accepting payment on behalf of an artist, deducting your commission, and then paying the balance to the artist does not make you a producer. It doesn’t matter whether or not you use the word agent or producer in the contract. Rather, it all comes down to how the booking contract is phrased:

X is a Producer:

“Venue X enters into this Agreement with Agent Y to produce and provide the services of Artist Z”

X is an Agent:

“Venue X enters into this Agreement with Artist Z for Artist’s services, by and through Artist’s Agent Y”

Anyone who books a date on behalf of an artist, whether as a manager or as a booking agent, is working for the artist. The artist is your client. In legal parlance, the artist would be referred to as the “Principal” and the agent would be referred to as…get ready for it…the “Agent.” Under the Law of Agency (not to be confused with various state licensing requirements for booking agents—that’s something completely different), agents (ie: someone who acts for and on behalf of someone else) owe a variety of duties to their principals, including duties of loyalty, duties of care, and fiduciary duties. In exchange, agents are not liable for the contractual breaches of their principals, even if the agent negotiated the contract on behalf of the principal. This is important. If the artist decides to cancel at the last minute or otherwise causes damages to the venue or presenter, the agent is not liable whereas a producer would be liable…provided, however, that the agent did not inadvertently make themselves a party to the contract and agree to “present or produce” the artist. A booking contract, then, should always be between the presenter/venue and the artist. As the artist’s agent and representative, you can absolutely sign on behalf of the artist as well as accept money on behalf of the artist. However, the contract is between the presenter/venue and the artist.

I suspect your presenter is either suffering from the “That’s the way we have always done it” disease or the more common affliction of “I don’t know what I am talking about but will insist I am right.” It also could be a fatal case of “We are affiliated with a large university and must abide by arbitrary and inflexible rules that do not apply and no one understands.” Regardless, if they insist on having the artist sign the contract, I really don’t have a problem with that. In fact, in many ways, I actually prefer it as it eliminates the ability of an artist to come back to you later and claim they never approved the terms of the engagement. However, even if the contract is between the venue and the artist, the contract can still provide for you to receive all of the payments on behalf of the artist. Some battles aren’t worth fighting.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

The Lost Art of Negotiation

Thursday, June 12th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

A longtime friend who is also a very successful artist who I greatly respect, asked me to do a project with him. He sent me a contract, but it doesn’t cover things like when and how I get paid. I want to mark up the contract and suggest some language, but I also don’t want to offend him and have him think I am being too difficult to work with and ungrateful for this opportunity. Is there some specific language I can put in the contract that he won’t find offensive, but will still protect me?   

I had a client of mine call me today about a contract she had sent to a promoter who then struck out a specific term that my client needed and sent the contract back to her. Frustrated and desperate to make the deal happen, she wanted me to suggest another way to phrase the term in such a way that the promoter would agree to it. Both you and my client are asking very legitimate questions, but the answers have little to do with contracts and everything to do with business and negotiation skills.

Contracts exist to memorialize an agreement. You can’t memorialize something that doesn’t exist yet. That’s like trying to take a photograph of a place you’ve never been. Before a contract can be properly drafted, much less signed, the parties have to discuss all of the key terms. While you can certainly use a contract to begin the discussion, you can’t avoid the discussion by simply crossing out terms you don’t like and inserting the ones you do. More importantly, there are no magic words, standard terms, or compelling phrases that will take the place of the need to discuss and negotiate.

Too many people in our industry try to use a contract to avoid negotiation—most often for the very reasons you mention: they are too scared of offending the other party, of not getting the terms they need, or of losing a deal or opportunity they really want. However, if you approach a negotiation as a game of deception in which the goal is to use illusive or even deceptively simplistic language or aggressive tactics to cajole the other party into agreeing to something unreasonable or something to your advantage which they would not otherwise agree to (ie: Lawyering 101), then you most certainly should expect the other side to be offended and deserve to lose the deal. On the other hand, if the other party is offended by a legitimate expression of your concerns, sincere questions about a specific term, or proposals that would clarify something you find confusing, then its probably either a deal you don’t want in the first place or a party you don’t want to work with. Just as importantly, if someone doesn’t agree with a term you want, they are not going to agree no matter how you phrase it. Phrasing the same thing in a different way isn’t going to help either. Even if you manage to word it in such a way that they can’t tell what they are agreeing to (what a lot of people refer to as “legalese”), then you’ll have to sue them to enforce it. Instead, you’ll either need to negotiate a compromise or evaluate whether or not the deal is equally advantageous to you without that term.

I have been to many purported lectures on negotiation at arts conferences, only to find that the lecture was really just about how to get presenters to book artists. That’s important, of course, but the real art of negotiation involves far more than discussing date, time and fee. Whether it is a commission, a booking, a production, or a recording, you must discuss and negotiate not just the artistic and logistical elements, but all of those nasty and boring business elements as well—such as liability, insurance, rights, licenses, approvals, exclusivity, taxes, visas, etc. If you are unfamiliar with the necessary business elements of a deal, the time to learn them is before you negotiate, not during the process.

A negotiation does not mean you will get what you want. Rather, a negotiation is a process that allows you to evaluate whether or not you will get what you need. Some opportunities are just that—opportunities—and a good opportunity may require you to accept some risk. But without taking the time to talk and discuss, you won’t have the information you need to access that risk properly. In other words, the negotiation process will save you from disappointment and frustration later on.

As for an answer to your specific question, I would say: Protect you from what? If your “longtime friend who is also a very successful artist who [you] greatly respect” breaches your contract, are you prepared to sue him? I thought not. I suggest you call your friend and ask him when and how you get paid. Don’t ever be scared to ask a legitimate question—especially when dealing with a friend. In the bi-polar cocktail of simultaneous love and resentment we call the arts world, doing business with friends demands an even higher degree of mindful discussion than doing business with strangers.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

Licensing Video For A Tribute Show

Thursday, June 5th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We are in production of a new “Tribute” show with a video component.  We are grappling with what type of media is public domain or where public domain photos or video can be found.  None of the video production companies seem to have a definitive answer.  I have been searching for pertinent federal statute that address this issue.  Any thoughts? 

There’s an old joke where a man encounters another man frantically searching for something in the middle of the street. The first man asks: “What are you looking for?” The second man replies: “My keys. I lost them in the dark alley over there.” “Then why are you looking for them out in the street?” “Because the light is better out here!” Ba da boom.

Like the man in the street, you’re looking for the right thing, but in the wrong place. There is no federal statute that addresses your issue…at least, not directly. If you’re producing a “tribute” show with a video component, then any copyrighted material you want to include in your video will need to be licensed. Any material that is not protected by copyright is in the public domain and is free to use. The question you need to ask then is: how do you tell if material is still protected by copyright? The federal copyright statute will give you a formula, but not the answer. The answer depends on when the copyrighted material was first published. Most often, copyright lasts for the life of the owner plus 70 years. But who is the owner?

The challenge with videos is that you are often dealing with multiple copyrights with multiple owners. Let’s say, for example, that you want to include a video of the original artist (since this is a “tribute” show) performing at a concert recorded in the 1960s. There is a copyright in the video itself as well as a copyright in the music being performed on the video. So, even if you were to determine that the video is in the public domain, the music being performed may still be protected by copyright—or vice versa. We once had an orchestra contact us about creating a DVD to celebrate their 50th anniversary using old video clips from past concerts. Not only did we (well, to be fair, Robyn!) have to obtain licenses from publishers of certain contemporary works (as well as arrangements of older works), but we needed to obtain licenses from some of the original videographers who still owned the rights to the video footage. (Side note: ALWAYS take the time to get a written license or assignment from anyone whom you hire to photograph or videotape your or your performance—even volunteers!)

Photographs are similar. In every photograph are two sets of rights: the rights to the photograph itself (ie: the negative) and the person being photographed. The photograph itself may be owned by the photographer, but the photographer may or may not own or control the rights to the image or person in the photograph. While a person does not have a “copyright” in his or her own image, they do own rights of publicity, rights of endorsement, etc. So, for example, if you wanted to use a photograph of the famous artist you are paying “tribute” to, you would need to determine whether or not the photograph itself was in the public domain and whether or not you required any publicity or endorsement rights to use the image of the artist. (To make matters even worse, publicity and endorsement rights are controlled by state, not federal law, and can vary from state to state.)

Determining whether or not a photograph is the public domain is just like determining whether or not a video is in the public domain: when was it made? Who made it? Are they dead or alive? Even if the photograph or video is in the public domain, you still need to do a separate analysis of the contents or images on the photograph or video.

While we’re on the topic of “tribute” shows, its also worth mentioning that even if you are lucky enough to find all the videos and photographs you want, as well as the contents thereof, in the public domain, you still need to be wary of using the name and image of the original artist in the marketing and publicity materials of your tribute show. Things like names and even visual elements such as distinctive costumes or a physical characteristic of the original artist can trigger trademark issues that are entirely different from copyright and other rights. The good news is that with enough advance planning and thoughtful analysis, its entirely possible to create the type of video component you want. Many artists and producers successfully do this all the time, often with the blessing of the original artist.

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For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

The Elephant and The Frog

Thursday, May 29th, 2014

By Robyn Guilliams     

Dear Law & Order

I’ve been hearing a lot about a recent U.S. ban on ivory that will prevent string players from transporting their instruments in and out of the country.  However, I recently travelled to Europe and back with my cello (my bow has a small ivory inlay in the frog), with no problem.  What’s the story?

What a great question!  There has been a lot of press lately about the “new” ban on ivory, which will affect musicians whose instruments contain even a tiny amount of ivory.  Although a number of issues related to the ban are yet unresolved, here’s what we know thus far:

The ban is not really new. U.S. law has prohibited items containing ivory, Brazilian rosewood and tortoiseshell from being brought into or taken from the U.S. for a number of years. (Many other countries have similar laws.)  While these laws haven’t been enforced in the past, the U.S. recently signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora (known as the CITES treaty) with 189 other countries.  The purpose of the CITES treaty is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.  Save the elephants and the sea turtles!

Fortunately, the governments participating in CITES realized that the treaty rules would make it impossible for some musicians to travel internationally with their instruments.  For this reason, CITES provides that musicians may obtain a certificate (or “passport”) that will allow them to transport internationally instruments that contain ivory and/or rosewood, and other banned materials (such as certain types of wood and sea turtle shell).  The passport, which is good for three years and is attached to the person, not the instrument (i.e., it’s not transferable), will allow the musician to travel with his/her instrument throughout the 189 countries without any problems (in theory).

There is no question that, at some point in the future, musicians with instruments containing ivory, rosewood, etc., who wish to travel internationally with their instruments must obtain this passport. However, at this point, there still are serious problems with the passport system:

  • The passport currently is accepted at a very limited number of US ports.  There currently are 18 ports that permit items relating to “endangered species” (ivory and tortoiseshell) to be brought into the country.  There are 15 ports that allow items related to “endangered wild fauna” (rosewood and other banned woods).  Only nine of these ports overlap.  I.e., if your instrument contains both ivory and rosewood, there are only nine ports at which you may enter the U.S.
  • In theory, one may request entry into a non-designated U.S. port.  However, the process for obtaining this permission is a mystery right now, and will vary from port to port.
  • The process for obtaining an instrument passport in the U.S. are still a bit in flux, as this is something quite new that the U.S. Fish & Wildlife Agency is dealing with.  In other words, we are dealing with a government agency working out the kinks of a brand new procedure—which means, if you plan to obtain an instrument passport in the very near future, expect delays and (potentially) other problems.  In fact, if you don’t plan to travel in the near future, you may want to sit back and relax, and concern yourself with obtaining your passport later (after the government has worked out its procedural problems on other poor souls!)

Obviously, one must obtain an instrument passport from their own country, so the rules may be different in various countries.

The great concern at this point is enforcement – when will it begin, and how?  Will there be any sort of grace period?  Unfortunately, these questions remain unanswered by U.S. Fish & Wildlife.  The good news is that, at present, we know of no cases of instruments being confiscated and/or destroyed.  (Let us be grateful for what we have…)

More details on the ban, the instrument passports, and potential enforcement are available at the  League of American Orchestras’ website: http://americanorchestras.org/advocacy-government/travel-with-instruments/endangered-species-material/ivory-ban-impact-on-orchestras.html

So the question for musicians is this:  Do they continue to travel with their instruments internationally with no passport, and hope for the best until enforcement begins?  Or do they go ahead and apply for a passport?  If they choose the first route, there is the risk (though minimal at this point) that their instrument will be confiscated.  If they choose the latter route, they risk enduring extra scrutiny from airport personnel who aren’t yet familiar with the new regulations and procedures.  Each person must weigh the pros and cons, considering their individual circumstances and.

Finally, I want to give a shout out to Heather Noonan at the League of American Orchestras, who has devoted an enormous amount of time an effort to this cause.  Many of you know this already, but Heather has been at the forefront of this issue and others, working tirelessly on behalf of musicians and orchestras.  Whenever I speak to her, she is on the move, on her way to meet with yet another charming legislator to advocate for musicians affected by the ivory ban, or for orchestras and other arts organizations affected by the latest kerfuffle with USCIS, or on other issues that affect our industry.  She works constantly to remind our elected officials that the arts, and artists, matter.  Thank you Heather!

__________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

The Hogwarts School of Contracting and Wizardry

Thursday, May 15th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

I had a signed agreement with a promoter to present my artist. The contract provided for two deposits and a final payment on the day of the performance. I worked for over a year with this promoter to put this deal together. Not only did he not pay either of the deposits, but one month before the performance, he called to say he hadn’t sold enough tickets and that it was no longer economically feasible. And he is refusing to pay the money he owes. What am I supposed to do? Sue him? Why should I have to spend the time and money to sue him when we have a signed contract? What’s the point of having a contract in the first place if its not going to protect me?

For many years now I have been climbing the stairs to my secret laboratory trying to create the self-enforcing contract. Upon anyone breaching the terms of such a contract, a magical enforcement beast will materialize, forcing the breaching party into compliance. Sadly, my efforts thus far have proven unsuccessful, resulting only in a few sparks, a bit of ectoplasm still dripping from the ceiling, and a hapless paralegal I may have inadvertently turned into a newt. Until I perfect my spells and enchantments, you’ll have to settle for the fact that contracts are only as valuable as the time, effort, and common sense that goes into them. They do not exist in a vacuum. They do not self-enforce.

The point of a contract is not to get signatures on some form or template littered with extraneous terms that everyone believes are “industry standard”, but no one really reads or understands, in the hopes that it will somehow, in and of itself, stalwartly protect you from the other party cancelling your engagement, refusing to pay, or performing any other courser of unpleasantness. Rather, the point of a contract is the opportunity it creates for you to enter into deals, negotiations, collaborations, engagements, and other relationships knowingly and intelligently. Among other things, it allows you to make sure everyone is on the same page (ie: Do you define net profits the same way I define net profits? Can I cancel if I don’t sell enough tickets?). It allows you to create benchmarks by which you can judge performance and good will (ie: Did the other party pay the deposit on time? Did the check clear?). It allows you to “test the waters” before jumping into a new relationship by first seeing if you and the other party can work together to resolve differences and challenges in the creation of the relationship in the first place.

Sometimes, having a contract can also provide you with leverage. If you can point out that the other party clearly did or didn’t do something which they clearly agreed to do or not do, that pressure alone can often be enough to force compliance. However, if the leverage doesn’t work, you are ultimately left with the sobering fact that the only way to enforce a breached contract is though a lawsuit (or arbitration, if your contract provided for that.) Even then, if you win a lawsuit, you still have to collect the money. A judgment does not automatically guarantee payment. (I’m working on a self-paying judgment, too, as soon as figure out how to change lead into gold.)

The key is not to let the situation get to the enforcement stage in the first place. While some contractual breaches are unavoidable, most are the result of one the parties ignoring warning signs or not taking advantage of the contractual process. For example, a recent client of mine negotiated the terms of an engagement which included the standard items such as dates, time, repertoire, and fees. Everyone agreed. However, when she sent the contract to the presenter, the presenter discovered that the artist expected additional costs to be paid for transportation. My client, on the other hand, discovered that the presenter wanted the artist to obtain insurance to cover all the members of his orchestra. Neither of these topics had been discovered during the initial discussions. Fortunately, both my client and the presenter took the time to read the contract. Even more fortunately, both parties scheduled a time to talk about their respective concerns, worked out compromises, re-drafted the contract, and everything worked out great. Similarly, I was recently negotiation a recording contract on behalf of an artist. When I tried to discuss certain contractual discrepancies and concerns with the other party, rather than engage in solutions, they merely insisted I should trust them and enter into the deal based on “good faith.” That made me trust them even less. My artist really wanted this deal, but I convinced them not to take the risk. In the end, we wound up finding a better deal.

In your case, if your contract provided for two deposits, and the promoter didn’t pay either one, at what point did you not realize that this train was going to jump the tracks? That’s like sending off a contract, not getting a response back from the presenter or manager, having the other party  ignore your phone calls and emails, and the pretending to be shocked to find out the deal is being cancelled…you can’t cancel what was never a deal in the first place. At the time the deadline for the first deposit came and went, that was your time to stop and evaluate whether or not to proceed. If, your professional judgment, it was worth waiting until the second deposit was due, great. However, by the time the second deposit deadline came, that should have been the time to bail. If you decided to rely solely on the contract to protect you, then you were also accepting the fact that if the presenter didn’t pay or cancelled at the last minute, you would have to enforce payment by filing a lawsuit. There are many times that rolling the dice makes legitimate business sense, but you have to accept that for what it is—gambling. Unless you want to incur legal fees and court costs, not to mention lost time, if you gamble and lose, move on.

This is inherently a risky business. Contracts allow you evaluate and, in some instances, minimalize risk, but never eliminate it. Only you can protect you. You and a little pixie dust.

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For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

The Invasion of the Visa Examiner Body Snatchers Continues! (aka “The Day The Visa Process Stood Still”)

Thursday, May 8th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I recently received an RFE for a group touring the US this summer. The group is represented by a European manager who books their dates, but our US management company has previously filed petitions for them in the past, all of which have been approved without a problem. The RFE claims that I need to prove that we are not only the agent for the artists, but for each of venues on their tour. I provided an itinerary, a letter of agreement between us and the group where we are agreeing to serve as their US representatives, as well as engagement contracts confirming all the dates, including fees. This is what I have always given them before. What do they want?

For those of you who have been lucky enough not to be following along, about four months ago, the US government agency that reviews and approves visa petitions for artists, United States Citizenship and Immigration Services (USCIS), was invaded by aliens…and, by that, I do not mean non-US citizens, but something non-human. It began at the USCIS Vermont Service Center where reports indicate that in early February 2014 the bodies of several unsuspecting USCIS visa examiners spontaneously exploded into a burst of tentacles, multiple glowing eyes, and gaping orifices of dripping fangs. Shortly thereafter, their seedlings were able to infiltrate deliveries of pico de gallo sent to the USCIS California Service Center where they quickly replicated themselves, consuming the bodies of helpless visa examiners there as well. Ever since, these insidious creatures have taken over the review of O and P petitions, resulting in flurry of spurious RFE’s or Requests for Evidence (ie: prove that Lincoln Center is a distinguished venue!) and re-imagined interpretations of regulatory language and requirements (ie: for a role in a production to constitute a “lead or starring role” it must also be performed by an artist whose name alone will demonstrably increase ticket sales!)

Whether these beings are the evil spawn of a far-away galaxy offended by interpretive dance or whether they come from a death star of Blue Meanies, we don’t know. What we do know is that, among other things, USCIS has been seriously scrutinizing petitions filed by agents and managers, as well as itineraries. On a recent national conference call with USCIS representatives, there was a considerable amount of talk about concerns over “speculative” employment and making sure that artists had “confirmed engagements” and were not merely asking for visas in anticipation of future work.

As a result, agents and managers are being asked with greater frequency to provide proof of the agency relationship, including proof that they are authorized to represent both the artist as well as the presenters/venues. This can be either a written (and signed) agency or management agreement with the artists or a letter or other statement signed by the artist confirming that the artist has “appointed” the agent or manager to represent them in the United States. If the agent/manager has also booked all of the engagements (ie: the agent/manager’s name appears on each of the contracts or engagement confirmations), then such a letter of appointment appears to be appeasing the visa beasts…at least for now. However, many times either the artist has booked their own engagements directly with the presenter/venue or the engagements have been booked by a non-US agency and the US agent or manager is merely serving as the petitioner for purposes of filing the visa petition. In such cases, which appears to be your situation, USCIS is asking for proof that the US petitioner has been authorized to file the petition by the artist (or the artist’s non-US agent) as well as by the artist’s non-US agent and, in some cases, by each of the presenters/venues on the artist’s itinerary.

Based on a strict regulatory analysis, I cannot say that this is inappropriate. Rather, its just a very literal reading of certain regulations which have never been strictly enforced until now. Regardless, unless you have booked each of the artist’s engagements yourself, if there are any engagements booked directly between the artist and the venue/presenter, then you also need to include an “appointment form” from those presenters/venues authorizing you to include their engagement on the petition. If the artist has a non-US agent or manager, then you will need (1) proof of the relationship between the artist and the non-US agent and (2) proof that you have been authorized by the non-US agent to file the petition for the artist and on behalf of the engagements booked by the non-US agent. If there are any engagements booked directly by the artists, you will also need proof from the presenter/venue that you are authorized to include their date on your petition. The good news, such as it is, is that such “appointment form” does not need to be anything more elaborate that: “I have engaged [Artist] to perform for me. I hereby appoint [Petitioner] to include this engagement on the visa petition.” That’s it.

We’ve actually been doing this for a while. Whenever our management division acts as petitioner, we include appointment forms from everyone—our theory being: the more paperwork we throw into a petition, the more there’s bound to be something in there a US examiner is looking far. We apply this same theory to reviews, programs, and all other evidence as well. So far, this has worked.

As I mentioned, I have participated on several recent national conference calls with USCIS officials and, on each occasion, they have declared no knowledge of any new practices, rules, requirements, or regulatory interpretations designed to frustrate or scrutinize the O and P visa process. Instead, they claim to have helpfully appointed a panel of “performing arts experts”—three, to be exact, who, near as I can tell, have little, if any, actual practical familiarity with what we do—to help come up with suggestions to solve problems they claim do not exist. In other words, to translate this into government-speak:

There is no problem, but if there is a problem, we have appointed a panel of experts unfamiliar with the problem to help come up with solutions to address the non-existent problem which doesn’t need addressing, because there is no problem, but we promise we will make it better by focusing on fixing things that were not broken in the first place…until they were broken…but not by us.  

On second thought, perhaps these invaders aren’t from another planet after all.

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!